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SOURCES OF LAW
Sources of Law in Antigua and Barbuda and the Commonwealth Caribbean:
– The Constitution
– Legislation
– Common Law / Case Law
– Equity
– Books of Authority
THE CONSTITUTION
Every independent Commonwealth country has a written constitution with the
exception of Britain itself. Constitutions are primarily about political authority and
power – the location, conferment, distribution, exercise and limitation of authority and
power among the organs of a state. Constitutions generally also include explicit
guarantees of the rights and freedom of an individual.
A constitution may be defined as ‘any document, series of documents, and or
customary rules which are either formally designated as enjoying a higher authority
than other rules of the politico–legal order … or which deal with the basic structure and
function of the state … [and are] stable and effective frameworks within which legal
and governmental processes habitually take place’. In other words, it may be said to
describe the whole system of government of a country and the collection of rules which
establish and regulate or govern the government. These rules are both legal and
customary, where the latter takes the form of usages, understandings, customs or
conventions and are as effective as law strictly construed.
In most countries, the constitution is generally the supreme law of the land. The
Constitution of Antigua and Barbuda states that the Constitution is the supreme law of
Antigua and Barbuda, and any other laws that are inconsistent with the Constitution
are void to the extent of their inconsistency. It is from this supreme law that laws
dealing with the establishment, composition and functions of Parliament are derived. It
establishes the highest political office of the land, the office of the President, and
governs his behaviour and his election to office. The Constitution also provides for the
regulation of electoral activities. It governs the executive powers to be exercised by all
ministers of cabinet as well as the functions, appointment and behaviour of other public
officers. Financial provisions are an important part of the Constitution as it provides for
the establishment and use of the Consolidated Fund which comprises monies to be used
as government expenditure. The legal basis for the establishment and functioning of the
judicature is also to be found in the Constitution. The Constitution is, therefore, an
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important source of law with respect to the establishment and regulation of
government.
LEGISLATION
The Constitution provides Parliament with the power to make laws for the peace, order
and good governance of Antigua and Barbuda. (Similar provisions are in each
constitution in the Commonwealth Caribbean).32 Parliament may enact, revoke or alter
such and any law as it sees fit (within the constraints of the Constitution, of course).
Coupled with this wide power is the convention that no one Parliament can bind its
successors in such a way as to limit their absolute legislative powers.33 While the legal
system of the Commonwealth is based on common law and the courts play an
important role in the interpretation of statutes, legislation has become the predominant
means of law–making in contemporary times. It is for this reason that background
knowledge of the legislative process is necessary.
Two Houses of Parliament:
– House of Representatives (Lower House)
– The Senate (Upper House)
